Oko Vs Ntukidem (2012)
LAWGLOBAL HUB Lead Judgment Report
WALI, J.S.C.
The plaintiffs sued (for themselves and on behalf of Ikot-Udo Village,) the defendants [as representatives of Ikot Ayan village] for :
(a) A declaration of title to all the two piece of land known as and called “Ndia Udot Ikot Udo” and Ndon Ubok Ikot Udo”, lying and situate in Ikot Udo within the Uyo Judicial Division of Cross River State.
(b) N1,000.00 damages for trespass; and
(c) Perpetual injunction against the defendants, their servants, privies and agents from further entry into the aforesaid piece or parcel of land or in anyway interfering with the plaintiffs’ rights and possession of the said land.
After pleadings were settled, the case proceeded to trial with each side adducing evidence in support of their averments at the end of which the learned trial judge, Akpabio, J. (as he then was) made the following findings:-
“I find from the survey plans tendered by both sides that the land in dispute is just one vast area of undeveloped farm land sandwiched between the villages of the plaintiff and defendants and with no building whatever on it. Both sides claim to have their juju shrines on it. That being the case, the crux of the matter would boil down to one question, namely – ‘who was the first to farm on the land? Both sides claim that their ancestors deforested the land. It looks, therefore as if the case for the plaintiffs has been evenly balanced by the case for the defendants, with no side stronger than the other, in which case the plaintiff should be non suited. There is however one piece of evidence which in my view has had effect of conclusively tilting the balance in favour of the plaintiffs, and that is the record of proceedings tendered by the plaintiffs as Exh. B Exh. B is a one page record of proceedings showing quite briefly that as far back as 1955 one Asuquo Edo of Not Udo (i.e. the plaintiffs’ village) (sic) to court claiming £50 damages for trespass to his 20 parcels of Ndon Ibot land …….. In other words, the 20 parcels of land in Exhibit B was part of the land claimed by the plaintiffs in this case ….. That being the case, it would mean that as far back as 1955 when the judgment in Exh. B was given, a member of the plaintiffs’ village had continued to be legally in possession at least of 20 parcels of land in the area now being claimed by the plaintiffs. It is a fact that the parties in Exh. B did not sue nor were they sued as representatives of their respective villages. But the fact remains that the plaintiff in this case was from the plaintiffs’ village, while the defendant was from the village of the present defendants and the land in question was also part of the Ndon Ubok land now being claimed. While this cannot operate as an estoppel per res judicata against the defendants, I nevertheless uphold the submission of learned plaintiffs counsel, on the authority of Ababio v. Priest-in-Charge Catholic Mission, 11 WACA 380, that it can certainty operate as evidence of possession ……… Once I believe this, I am bound to believe also that the plaintiffs were also in possession of the land on the opposite side of the road known as Ndia Udot……………………….. The important point is that traditionally rivers are always used as natural boundaries between the two people. But it is not so in the defendants’ plan.
In effect therefore, I believe that the features shown on the plaintiffs’ plan approximate more to the truth than those shown on defendants’ plan, in view of the decision in Exh. B. I also hold that plaintiffs were fully in possession of the two piece of land known as Ndon Ubok Udo and Ndia Ikot at the time of the alleged trespass.”
The learned trial judge after making the findings (supra) granted the reliefs claimed by the plaintiffs.
The defendants appealed to the Court of Appeal, Enugu Division, against the decision. The Court of Appeal, after considering the argument presented by both sides, concluded thus-
“This appeal quite rightly turns around the very narrow pivot of the ill use that the trial judge made of Exhibit B and as it was on the basis of this fact more than anything else that he found the plaintiffs’ case established, this appeal is bound to succeed as it has been shown that this Exhibit B cannot properly be foundation for the plaintiffs’ case. I have dealt with this question previously, and it, with other reasons I have shown in this judgment, has led to my conclusion that this appeal succeeds and is allowed.”
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The plaintiffs have now appealed to this court. Henceforth the plaintiffs would be referred to as the appellants, while the defendants would likewise be referred to as the respondents.
With the Notice of Appeal, the appellants filed three grounds of appeal. Briefs were filed and exchanged. In the brief filed by the appellants, the following issues were raised for determination:-
As the learned trial judge has held that the case for both sides on traditional history was evenly balanced before he resorted to Exhibit B (a customary court judgment between a person from the plaintiffs’ village and a person from the defendants’ village in relation to a part of the land in dispute) to hold that the balance tilted in favour of the plaintiffs, was the Court of Appeal right in holding that improper use had been made of Exhibit B?
2.Whether it was proper for the Court of Appeal to completely ignore the arguments addressed to it by the plaintiffs/appellants on the assumptions (in favour of the plaintiffs) made by the learned trial judge that rivers are traditionally used as natural boundaries between two people.
Having held that the learned trial Judge had made no findings on certain points of disagreement (and this was stated by the Court of Appeal to be noteworthy) was it legally proper for the Court of Appeal to dismiss the plaintiffs’ case instead of remitting the case back to the trial court for retrial.”
Learned counsel for the respondents did not formulate any issue in his brief but impliedly adopted those formulated by the appellants and also followed the pattern in the presentation of his arguments, adopted by the appellants.
Before dealing with the arguments, let me once again state the procedural law where briefs have been filed and issues formulated. Issues are formulated on the ground of appeal filed and once that is done, all arguments are presented on the issues and not on the grounds of appeal. It is misleading for the learned counsel for the appellants to say “Grounds 1 and 2 taken together” while in fact he was arguing issues 1 and 2 together which were based on the said grounds. See Momodu v. Momoh (1991)1 NWLR (Pt. 169) 608 Ojibah v. Ojibah (1991)5 NWLR (Pt. 1991) and Aja v. Okoro (1991) 7 NWLR (Pt. 203) 260. On issues 1 and 2, it was the submissions of learned counsel that the learned trial judge, after his finding that “The case for the plaintiffs has been evenly balanced by the case of the defendants” it was proper for him to look for any other facts and circumstances in the case of either Parties in order to tilt the balance in favour of one of them. It was in that process that he (the learned trial judge) resorted to Exhibit B which was tendered and admitted without objection, and tilted the balance in favour of the appellants and that he was perfectly right to so do. I support of this submission, he relied on the following decisions – A.R. Mogaji v. Rabiatu Odofin (1978) 4 SC 1. 0. Akpapuna & Ors. v. Obi Nzeka 11 & Ors. (1983) 7 S.C. 1 land Kojo v Bonsie (1957) 1 W.L.R. 1223. He therefore submitted that the Court of Appeal was wrong to opine that Exhibit B was inadmissible and to expunge it.
Learned counsel further submitted that the Court of Appeal was wrong in relying on the case of Yoye v. Olubote (1974)10 S.C. 209 at 214-215 to upset the judgment of the trial court as the present case is not on all fours with Yoye’s case. He contended that what was claimed in Yoye’s case was not the same or encompassed the area claimed in the previous case. It was for that reason that it became necessary to establish the identity between the land claimed in the previous case and the area claimed in the subsequent case (Yoye’s case), hence the evidence of a surveyor was stated to be essential to relate the plan in Yoye’s case to the description of the land in dispute in the previous case. He said that what the appellants asserted and proved was that the same piece of land within the land in dispute were litigated upon in trespass in 1954 and that Exhibit B was put in evidence to show some acts of possession. He submitted that in the given circumstances the evidence of a surveyor to relate the pieces of land in dispute in Exhibit B to the land in dispute in the present case was not necessary. He cited and relied on Ezeadu v. Obiagwu (1986)2 NWLR. (pt. 21)208 and Omorogie v. Idugiemwage (1985) 2 NWLR (pt. 5) 41.
On the issue relating to the finding by the learned trial judge that he was entitled to take judicial notice of the fact that a river is a natural boundary between communities, learned counsel submitted that he was right to do so, as it was a notorious fact. In support, he cited the case of Oyelowo v. Oyelowo (1987)2 N.W.L.R. (pt. 56) 239C.A.
In reply to the submissions above, it was the submission of learned counsel for the respondents that the learned trial judge was in error in placing so much reliance on Exhibit B without calling the surveyor who prepared Exhibit A to relate that the pieces of land in Exhibit B fall within the land in dispute in Exhibit A. He contended that Exhibit B cannot be evidence of acts of possession since it was not shown that it falls within the land in dispute – Exhibit A. It was also the contention of learned counsel for the respondents that it is not only when a plea of res judicata is raised that it becomes necessary for a surveyor to be called to relate the land in a previous litigation to the land in dispute. He also cited and relied on Yoye v. Olubode (supra).
On the issue of taking judicial notice by the learned trial judge of rivers as natural boundaries between communities, he submitted that as none of the witnesses gave evidence that rivers are always used as natural boundaries, the learned trial judge was wrong to have held so. He therefore urged this court to dismiss the appeal.
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In this appeal both the appellants and the respondents are claiming a declaration to parcels of land to which they ascribed different names, relying on traditional evidence in proof of that. At the end of the trial, the learned trial judge. Akpabio J. (as he then was) made a finding on such evidence that “the case for the plaintiffs has been evenly balanced by the case of the defendants, with no side being stronger than the other in which the plaintiffs should be non suited.” After making this findings he however proceeded to consider Exhibit B, resulting in tilting the balance in favour of the plaintiffs/appellants and entered judgment for them on their claims.
The crucial contentions between the parties is the reliance put on Exhibit B to tilt the balance in the appellants’ favour. Exhibit B is a short judgment and I consider it pertinent to reproduce it here:
CIVIL J. B. 1/55 p.97.-55 Case No. 42/54-55
Asuquo Udo Eno of Ikot Udoh v. Mbre Obong Akpan Onyung of Ikot Ayan
Particulars of Claim – £50 damages for trespass on plaintiff’s 20 parcels of Ndon Ubok land.
Clearing same and Planting crops on which land is situated at Ikot Udoh, encroached on by the defendant as known to the plaintiff on 21/2/55.
Case called, defendant absent.
Vide attached memo, service was duly effected on defendant on 15/5/55. Findings: Judgment in default.
Judgment for plaintiff for 50 in 7 days plus 16/6d costs in 3 days Sgd:
Eyo Akpan (President)
Akpan Udo (Member)
Etim Ibanga “
Patrick Nsibang “ “
On this issue, the Court of Appeal, in its unanimous judgment found as follows:
“In this appeal it was never established by evidence what is the connection or relationship between the 20 parcels of land in Exhibit B and the two parcels of land in dispute which the plaintiffs/respondents showed in the Exhibit A as the land in dispute. There is no doubt that the Exhibit B speaks of “20 parcels of Ndon Ubok land” and that the claim in the present case speaks, ‘of two pieces or parcels of land known and called Nya Udot Ikot Udo” and Ndon Ubok Ikot Udo” all the two pieces or parcels of land lying and situate at Ikot Udo, along Nkot Ayan – Ikot Udo Road, Uyo.” But mention of these names ends all the similarity perhaps, and this is not enough for identifying these lands and treating them as being the same as the trial judge seems to have done. There is emphatic Deed for establishing by clear evidence that the 20 parcels of land of Exhibit B lie within Ndon Ubok Ikot Udo” of the present case, but this proof was not offered.”
“Nobody established that the land in dispute Exhibit B is the same or part of the land in dispute in this present case. Besides the parties are not the same, for even if the plaintiff in Exhibit B is from the village of the respondents, his proprietory rights and interests do not coincide with those of the respondents in this case.”
‘The trial judge made improper use of Exhibit B and denied himself the opportunity of properly evaluating the evidence before him ……….. Here was not a case of defendants “conceding” that plaintiffs built on the land, but rather the strong claim by defendants that they evicted the plaintiffs from defendants’ land and effectively stopped their attempts to build on the land. These are acts of possession in favour of the defendants which the trial judge had failed to evaluate and appreciate. Or he drew wrong conclusion from established facts, and either situation would warrant this court interfering with his findings of facts and conclusions from such facts which were erroneous.”
I cannot but agree more with these findings by the Court of Appeal. Exhibit B was not only a default judgment but also did not give the details and locations of the parcels of land claimed therein. The facts stated in it were so scanty to infer that the parties were litigating in representative capacities. This was in fact the finding by the trial judge. No plan was tendered. Even if a surveyor was called, I cannot see how, with the scanty or no description of the parcels of the land in Exhibit B, he could relate the same to the present case.
I have read the cases cited by the learned counsel for the appellants to show acts of possession by the appellants and have found them to be irrelevant, since there was nothing to relate Exhibit B to the land in dispute. To do this, as pointed out by learned- counsel for the respondents, the evidence of surveyor is not only essential but necessary.
SC. 30/1989
